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Vicenzino v. Bedminster Township Board of Education

June 01, 1998


Before Judges Pressler, Wallace and Carchman.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

[9]    Argued: May 5, 1998

On appeal from the State Board of Education.

Bedminster Township Board of Education (Bedminster Board) appeals from a final decision of the State Board of Education which affirmed the action of the Commissioner of Education in directing Bedminster Board to reinstate petitioner Marilyn Vicenzino to her school social worker position. The Bedminster Board contends that: (1) pursuant to N.J.S.A. 18A:28-9 it rightfully eliminated petitioner's position; and (2) N.J.S.A. 18A:46-14; 18A:46-19.7, and N.J.A.C. 6:28-7.1(a) permit the provision of Child Study Services through the County Educational Services Commission. We find no merit in these arguments and affirm essentially for the reasons expressed by the Administrative Law Judge (ALJ) in his written decision of December 19, 1996. We hold that where a school district elects to maintain its own Child Study Team (CST), the school social worker must be an employee of the district.

Petitioner was employed as a part-time school social worker and had acquired tenure in that position by the Bedminster Board. She was assigned to the district's CST where she participated in making preliminary determinations as to the necessity of a full evaluation of children identified as potentially educationally handicapped. Petitioner had various duties as a social worker and was the case manager for fourteen students.

In March 1996, the Board determined that it could effectuate considerable savings by eliminating petitioner's position and contracting with the Hunterdon County Educational Services Commission (ESC) to provide social case histories for the students. In addition, the case management services provided by petitioner would be reassigned to the CST Director. The Board decided that the approximately fifteen case histories anticipated for new referrals to the CST could be handled by the ESC at a cost of $300 per social history. Petitioner's annual salary was $19,380. As a result of this move, the Board anticipated it would save approximately $15,000.

The Board voted in favor of the elimination of petitioner's position at its meeting on March 21, 1996, and advised petitioner she was to be terminated. Petitioner filed an appeal with the Commissioner of Education, claiming that the Board's action was contrary to decisional law and violated her tenure, seniority, and re-employment rights. The Board filed its answer and separate defense. The matter was then referred to the Office of Administrative Law.

The Board moved to dismiss the appeal for failure to state a cause of action for which relief may be granted, and petitioner filed a cross motion for summary decision. The ALJ ruled in favor of the petitioner, concluding that where a district chooses to maintain its own CST, the social worker, the school psychologist, and the learning disability teacher consultant must be employees of the district and cannot be outside contractors. Consequently, the ALJ decided that the Board's action violated regulations and ordered petitioner's reinstatement. The Commissioner and State Board of Education affirmed the ALJ's initial decision. This appeal followed.

Initially, we note that our review is limited. "[W]e will not reverse the determination of an administrative agency unless it is arbitrary, capricious, or unreasonable or is not supported by substantial credible evidence in the record as a whole." Dennery v. Board of Educ., 131 N.J. 626, 641 (1993)(citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). To be sure, the same standard applies "to resolve disputes arising under school laws." Impey v. Board of Educ., 142 N.J. 388, 397 (1995). Moreover, we are mindful of the deference that courts must accord agency action that purports to effectuate statutory and regulatory authority. Brady v. Department of Personnel, 149 N.J. 244, 256 (1997).

The essential question is whether a local board of education may lawfully eliminate one position of the CST and contract with an outside contractor to provide those services while choosing to maintain the other two basic CST positions. The Board argues that N.J.S.A. 18A:28-9 is authority for the elimination of petitioner's position. We consider the Board's contention in light of the complex applicable statutes and regulations.

The Legislature has authorized the elimination of teaching positions for reasons of economy and efficiency. N.J.S.A. 18A:28-9 provides:

Nothing in this title or any other law relating to tenure of service shall be held to limit the right of any board of education to reduce the number of teaching staff members, employed in the district, whenever, in the judgment of the board, it is advisable to abolish any such positions for reason of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article.

[N.J.S.A. 18A:28-9.]

The Board contends that it fully complied with N.J.S.A. 18A:28-9 when it terminated petitioner for reasons of economy. Petitioner contends that as a member of the CST, the Board may not solely eliminate her position and contract with ...

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